Singh, Jagit v Minister for Immigration & Ethnic Affairs

[1996] FCA 421

CATCHWORDS

ADMINISTRATIVE LAW - judicial review of the decision of the Refugee Review Tribunal that the applicant is not a refugee under the 1951 United Nations Convention relating to the Status of Refugees - applicant, a Sikh from the State of Punjab in India, having a subjective fear of persecution on the grounds of religion and political opinion - the critical time at which facts had to exist to enable the applicant to meet the criteria of the 1951 United Nations Convention relating to the Status of Refugees was the time when he sought recognition as a refugee - determining the likelihood of the applicant being persecuted if he returned to India as at the date of the Refugee Review Tribunal's own determination or within the reasonable future is an error involving an incorrect interpretation of the applicable law within the meaning of s476(1)(e) of the Migration Act 1958 (Cth).

Migration Act 1958 (Cth) s 476(1)(e)

No SG 62 of 1995

JAGJIT SINGH v MINISTER FOR IMMIGRATION AND ETHNIC AFFAIRS and REFUGEE REVIEW TRIBUNAL

Branson J
Adelaide
30 May 1996

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 62 of 1995
  )
GENERAL DIVISION                 )

BETWEEN:

JAGJIT SINGH

Applicant

- and -

MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS and
  REFUGEE REVIEW TRIBUNAL

Respondents

MINUTES OF ORDER

CORAM:    Branson J
PLACE:    Adelaide
DATE:     30 May 1996

THE COURT ORDERS THAT:

1. The decision of the Refugee Review Tribunal of 10 August 1995 is set aside.

Note:     Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

IN THE FEDERAL COURT OF AUSTRALIA )
  )
SOUTH AUSTRALIA DISTRICT REGISTRY )    No SG 62 of 1995
       )
GENERAL DIVISION                 )

BETWEEN:

JAGJIT SINGH

Applicant

- and -

MINISTER FOR IMMIGRATION
  AND ETHNIC AFFAIRS and
  REFUGEE REVIEW TRIBUNAL

Respondents

REASONS FOR JUDGMENT

CORAM:    Branson J
PLACE:    Adelaide
DATE:     30 May 1996

By application dated 13 September 1995 the applicant seeks review of a decision of the Refugee Review Tribunal ("the Tribunal") dated 10 August 1995.  By such decision the Tribunal affirmed a decision of a delegate of the Minister for Immigration, Local Government and Ethnic Affairs that the applicant was not a refugee under the 1951 United Nations Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees ("the Refugees Convention").

This application was heard together with applications for review filed on behalf of Mohinder Singh (SG 56 of 1995) and

Surgit Singh (SG 65 of 1995).  These reasons for judgment should be read together with those delivered in the matter of Mohinder Singh.

The issue of the law to be applied in considering these three applications is discussed in my reasons for judgment in the matter of Mohinder Singh. I shall not repeat here my reasons for concluding that each of the applications is to be determined in accordance with the Migration Act 1958 (Cth) ("the Act") as in force on and after 1 September 1994, as if the application initially made was an application for a protection visa.

The issue of the critical time for the assessment of whether or not the applicant has the status of a refugee under the Refugees Convention is also dealt with in my reasons for judgment in the matter of Mohinder Singh.  I shall not repeat here my reasons for concluding that the critical time for the assessment of refugee status is the time when the application for recognition of such status was lodged.

In this case the applicant sought recognition of refugee status in Australia by lodging his application for refugee status on 27 May 1993.

FACTUAL BACKGROUND

The applicant is from the rural village of Nawan Shahr in the district of Jallandhar in the State of Punjab, India.  After completing 5 years of schooling at a local village school, he farmed land which belonged to his family near his native village.  From 1975 until he left India he was employed as a truck driver.

In support of his application for refugee status the applicant claimed that in 1985 he became an underground member in the then popular All India Sikh Student Federation ("the Federation").  The objectives of the Federation were to fight for democratic rights and for an independent Sikh state to be known as Khalistan.  He stated that he supported the Federation by attending meetings from time to time, participating in strikes and peaceful demonstrations and by using his truck to provide transport for members from time to time.

The applicant asserted that in 1988, when he was driving his truck, the police stopped him in the State of Haryan.  He was interrogated as to his assistance to and involvement with the Federation.  He was allowed to continue his journey, but thereafter has been "continually harassed by the Police".

He further asserted that in about July 1989, while he was driving his truck, the Police of Punjab arrested him and alleged that he had helped Sikh extremists escape and that he harboured Sikh extremists.  He was taken into police custody and held overnight.  A sum of 20,000 rupees was paid to the police for his release.  He asserted ongoing police harassment, extending to his family, from that time.

Subsequently the applicant made additional assertions in support of his claim for refugee status.  He claimed that he was beaten on several occasions by the police for providing transport to members of the Federation and that in 1985 his name appeared on a blacklist kept by the government and the police.  He further asserted that after 1988 he went into hiding and moved his wife and children interstate.  He produced a letter, which purports to be from his Indian advocate, which states that the Indian Government has falsely charged him with murdering 2 political personalities.  The letter goes on to assert that the police have been searching for him since 10 June 1992 and that as he has not appeared in court a magistrate has issued non-bailable warrants for his arrest.  The letter also asserts that the applicant is wanted in respect of other criminal cases, expresses the opinion that the applicant could be "liquidated" by police if he returns to India and advises him not to so return.  The applicant also produced a warrant for his arrest dated 22 February 1992.

FINDINGS OF THE TRIBUNAL

The Tribunal did not find the applicant to be a credible witness on all material issues.  Although it found that the applicant became involved with the Federation in 1985 and undertook various activities on the Federation's behalf, it concluded that such activities "were largely of an administrative nature such as providing transportation for members when it was required."  The Tribunal found that he ceased his involvement with the Federation in 1988.

The Tribunal did not accept that the applicant's name appeared on a government blacklist.  It did not accept that letter purporting to be from the applicant's Indian advocate was authentic and it did not accept the truth of the contents of that letter.  There was evidence and material before the Tribunal to justify the attitude of the Tribunal to the blacklist, the letter and the contents of the letter.

The Tribunal also declined to place any weight on the warrant produced by the applicant.  With respect to this warrant I repeat the remarks which I have made in the matter of Surgit Singh.  In my view, where an applicant for refugee status produces a document, such as a warrant of arrest, which purports to be an official document issued in a foreign country, in the absence of clear evidence which reveals it to be a forgery, its authenticity, if in issue, is a matter appropriate for verification by the Tribunal through official channels.

The Tribunal accepted that the applicant, being outside his country of origin, has a subjective fear of persecution.  It also found that:-

"The risk which he fears, which is based, in part, on his political views is inextricably linked with his religion as a Sikh."

In my view this must be regarded as a finding that the applicant's subjective fear of prosecution is based upon the Refugees Convention grounds of religion and political opinion.

In considering whether the applicant's subjective fear of persecution was "well founded" within the meaning of the Refugees Convention, the Tribunal reviewed evidence and other material on the situation of Sikhs in India, and in particular, in the State of Punjab.  It did so by reference to virtually identical material to that considered by it in the case of Mohinder Singh.  I outlined the nature of that material in my reasons for decision in the matter of Mohinder Singh.

The Tribunal concluded as follows:-

"While I have accepted that the Applicant's subjective fear of return to India appears to be genuine, on the facts before the Tribunal his fear relates primarily to the uncertainty of the security climate which characterised the Punjab region at the time of his departure.

Nevertheless, it is clear from information from a variety of sources that there has been a dramatic improvement in the Punjab in the intervening years.  From the evidence examined above, I have concluded that the Indian authorities in the Punjab are targeting top Sikh militants and those with a degree of prominence in human rights reporting.  I find, therefore, that there is substantially less than a real chance of the ordinary Sikh with no continuing involvement of any significance in separatist activities attracting the adverse attention of the authorities which would result in detention and mistreatment which Sikhs in the region have experienced in the past.

I am unable to find on the evidence that, at the time that he left India, the Applicant had a personal profile which was sufficient to bring him to the notice of the authorities and result in persecutory treatment ...  .

... it may be the case, if he is deported, that the Applicant will be questioned by the authorities on his return.  However, in the absence of any political profile, there is less than a real chance that any further action would be taken against the Applicant which would result in persecutory treatment for a Convention reason ...  .

If he does not to wish to return to the Punjab because of his experiences in the past, it is open to the Applicant to settle in another part of India where there are concentrations of Sikhs who are not experiencing Convention related difficulties.  I do not consider that relocation is an unreasonable option for him to pursue, given his age and occupation as a truck driver, as well as the fact that he has spent a considerable period of time driving his truck outside the state of Punjab.

Accordingly, having considered his claims cumulatively and individually, I do not find that the Applicant faces a real chance of persecution because of his religion or political opinion upon return to India at this time or within the reasonably foreseeable future in terms of the test laid down by the High Court in Chan."

CONCLUSION ON REVIEW

As I have stated above, in my view, the critical time at which facts had to exist to enable the applicant to meet the Refugees Convention criteria for a refugee was the time when he sought recognition as a refugee, namely on 27 May 1993.

On the critical issue of whether or not the applicant had a well-founded fear of persecution for a Refugees Convention reason, the Tribunal assessed facts not as at 27 May 1993 but at the time of its determination and "within the reasonably foreseeable future". In my view, this amounted to an error of law within the meaning of s476(1)(e) of the Act.

In my view, the same error of law permeates the Tribunal's assessment of whether or not it would be unreasonable for the applicant to relocate in India but outside of the State of Punjab.

The decision of the Tribunal must be set aside.

I certify that this and the preceding       pages are a true copy of the Reasons for Judgment of the Honourable Justice Branson.

Associate:

Dated:

Counsel for the Applicant        :    Mr G Patel
Solicitors for the Applicant     :    Patel & Co

Counsel for the Respondents      :    Ms S Maharaj
Solicitors for the Respondents    :    Australian Government
  Solicitor

Hearing Date  :    11 April 1996